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Following the Supreme Court's decision in Bilski v. Kappos, the
United States Patent and Trademark Office (USPTO) plans to release new
guidance as to which patent applications will be accepted, and which
will not. As part of this process, they are seeking input from the
public about how that guidance should be structured.

Normally when the USPTO solicits feedback like this, they hear almost
exclusively from patent attorneys who have a vested interest in making
sure that patents are granted as broadly as possible. And this
process will be overseen by David Kappos, the current director of the
USPTO and formerly an attorney at IBM in charge of their heavy-handed
patent strategy. The company obtained large numbers of software
patents with his oversight (and has continued to do so after his departure).

It's not hard to guess what this guidance will look like if we leave
this process in their hands. But there's no rule that says only
patent attorneys can offer feedback. Patent examiners are civil
servants and accountable to the public at large. The USPTO should
hear from software users and developers, who acutely feel the effects
of software patents that limit what they can do with their computers
and free software.

Ciaran O'Riordan, executive director of End Software Patents has said,
"The Bilski decision didn't give us everything we wanted, but there
was a silver lining. We asked the Supreme Court to reaffirm their
rulings in Diehr, Benson, and Flook, and distance themselves
from the decisions of lower courts that expanded patent eligibility.
They did just that. Now the USPTO has to interpret this shift, and
our task is to ensure that this key element of the decision isn't
forgotten."

If you're a U.S. citizen, please write to the USPTO at
Bilski_Guidance@uspto.gov and tell them that their new guidance
should include a strong stand against software patents. Submissions
are due by Monday, September 27. Please share a copy of your
letter with us, by CCing licensing@fsf.org. That way the USPTO will
know that someone else is keeping track of the number of letters sent.

Your letter should explain how you're affected by software patents,
how software patents take freedom away from all computer users, and
that a strong stance against software patents in USPTO's guidance
would be consistent with the Bilski decision. If you like, you can
use some of the text below to help you get started on your letter:

Software patents hurt individuals by taking away our ability to
control the devices that now exert such strong influence on our
personal freedoms, including how we interact with each other. Now
that computers are near-ubiquitous, it's easier than ever for an
individual to create or modify software to perform the specific
tasks they want done -- and more important than ever that they be
able to do so. But a single software patent can put up an
insurmountable, and unjustifiable, legal hurdle for many would-be
developers.

The Supreme Court of the United States has never ruled in favor of
the patentability of software. Their decision in Bilski v. Kappos
further demonstrates that they expect the boundaries of patent
eligibility to be drawn more narrowly than they commonly were at the
case's outset. The primary point of the decision is that the
machine-or-transformation test should not be the sole test for
drawing those boundaries. The USPTO can, and should, exclude
software from patent eligibility on other legal grounds: because
software consists only of mathematics, which is not patentable, and
the combination of such software with a general-purpose computer is
obvious.